Reassignment as a Reasonable Accommodation Under the ADA

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Quick Hits

• Recent federal circuit decisions and EEOC guidance has impacted how employers should view reassignment under the ADA as a potential accommodation.
• Federal courts are split on whether reassignment requires direct placement or merely an opportunity to compete. The EEOC takes the broadest view and is aggressively enforcing it.
• Employers that follow the broad approach eliminate compliance risk in every jurisdiction.
• Supreme Court review is widely anticipated; but the broad approach is future-proof.

The Americans with Disabilities Act (ADA) expressly lists “reassignment to a vacant position” as a reasonable accommodation, but in practice the scope of that obligation is hotly contested. How far must the employer search? Must the employee compete? This article explains the two dominant frameworks, the current circuit split, and practical steps for employers that want to stay ahead of the curve.

Two Ways to Read the Reassignment Duty

The Narrow Approach. Under this reading, an employer’s neutral, consistently applied policies can limit the reassignment obligation. If the employer requires all internal candidates to compete for openings, it may apply that policy to reassignment. Neutral transfer or geographic-scope policies may likewise cap the search. Proponents read the Supreme Court of the United States’ key accommodation decision broadly—as establishing that neutral policies generally make a disability-based preference unreasonable. Under this framework, the employee may be left to find and apply for vacancies independently.

The Broad Approach. Under this reading, reassignment means placement—not merely a chance to compete. If the employee is qualified for a vacant position, the employer must offer it directly. Neutral policies (other than bona fide seniority systems) do not excuse the duty. The employer bears primary responsibility for identifying vacancies companywide, sharing a list of options with the employee, and offering the position closest to the employee’s current role in pay, status, schedule, and location.

Where Does the EEOC Come Down?

The U.S. Equal Employment Opportunity Commission (EEOC) takes the broadest possible view. Its enforcement guidance holds that: (1) the employee need only be qualified—not the “best qualified”—so placement without competition is required; (2) the employer must lead the search and inform the employee of vacancies because it is in the best position to know what is open; (3) no geographic or departmental limit may be imposed unless the employee voluntarily sets a boundary; (4) the employer must offer the vacancy closest (in pay, benefits, title, responsibility, location, etc.) to the current role first; and (5) the Supreme Court’s key decision applies only to bona fide seniority systems, not to other neutral policies.

The only criteria the EEOC considers legitimate for eliminating a vacancy are that the employee is unqualified, the position is not actually vacant, placement would require creating a new role or bumping another employee, the position would be a promotion, the employee cannot perform the essential functions, or placement would violate a bona fide seniority system the employer does not deviate from.

The Circuit Split: Where Things Stand

Federal appellate courts are divided. The disagreement turns on how each circuit reads the Supreme Court’s key accommodation decision when applied to neutral employer policies. A slight majority of circuits—roughly six—side with the EEOC and adopt the broad approach. A minority—roughly five—take the narrower view. At least one circuit has not squarely decided.

The most prominent dispute is whether the employee must compete for a vacancy. A secondary question is whether the employer must affirmatively search for and share a list of openings—and notably, even some courts rejecting mandatory noncompetitive placement still expect the employer to participate in an interactive process and share vacancy information. The geographic-scope issue tracks the competition question: only courts allowing neutral policies to block reassignment also allow geographic limits. On timing, all courts agree that “vacant” means currently open or reasonably expected to open in a short window—generally a few weeks, not months.

Because the split is tied directly to interpreting a Supreme Court decision, eventual high court review is widely expected.

Following the Broad Approach

Following the EEOC’s guidance does not risk an adverse finding in any circuit—courts that reject the broad view would simply see the employer as having exceeded its obligations. Conversely, following the narrow approach in a broad-approach jurisdiction creates serious exposure: ADA verdicts can be staggering, with reassignment-specific outcomes reaching eight figures and broader accommodation cases producing awards in the hundreds of millions. The EEOC’s current enforcement plan expressly targets employers whose defenses challenge Commission guidance, and the agency has been actively litigating and settling ADA cases. Finally, if the Supreme Court sides with the majority, narrow-approach defenses collapse overnight.

Given the above, here are some practical steps for employers adopting the broad approach:

Confirming the threshold. Documenting the reassignment is warranted. This step includes documenting that the employee held a role, can no longer perform the essential functions with or without accommodation, or continued accommodation would be an undue hardship.

Gathering information. Critical information includes qualifications, restrictions, and relocation preferences from the employee.

Searching companywide. A companywide search involves identifying all locations and departments, reaching out to recruiters about positions opening within approximately a month, and documenting the search.

Sharing a vacancy list. Consider providing qualifications, pay, benefits, schedule, location, and relocation costs on vacancy lists. In addition, consider asking the employee to identify qualifying positions, note accommodations needed, and rank preferences.

Offering the closest match. Consider selecting positions mirroring the employee’s rankings and closest to the employee’s current role. Employers will want to be prepared to justify any deviation.

Putting it in writing. Consider providing offers in writing and obtaining a written acceptance. Employers may want to treat a refusal of a reasonable offer for nondisability reasons as a refusal of accommodation.

Maintaining status and documenting everything. Consider keeping the employee on leave or temporary assignment during the search, while not imposing artificial deadlines. Thorough documentation of each step is important since the process may be scrutinized.

Takeaways for Employers

• The broad approach eliminates legal risk in every federal circuit.
• Supreme Court review is likely; employers relying on the narrow approach may want to be prepared for potential invalidation.
• The EEOC is actively enforcing its guidance; positions at odds with it invite systemic investigations.
• Thorough, contemporaneous documentation of the interactive process is the strongest defense in any charge or litigation involving accommodations.
• Multistate employers benefit most from a uniform, broad-approach reassignment policy.

Ogletree Deakins’ Employment Law Practice Group will continue to monitor developments and will post updates on the Employment Law and Multistate Compliance blogs as additional information becomes available.

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